From phm@a2e.de  Thu Feb  8 09:57:44 2001
Date: Thu, 8 Feb 2001 10:57:44 +0100 (CET)
From: PILCH Hartmut phm@a2e.de
Subject: [Patents] Bessen & Maskin reply on software patent paper

> You have raised another argument, that software IP should not be treated
> differently from other fields. You have a point, but given that patents are
> also screwed up in other fields, I am not sure this alone provides a
> convincing reason for Europe to change its statute, at least not until some
> of the other patent problems are solved.

Differentiation is essential to IP as to any law field.
Otherwise it would have to be argued that "social engineering should not
be treated differently from other types of engineering".
Between software and chemistry or biotech there lie several
borderlines that could be used for differentiating.
One has traditionally been used in Europe:  whether there is a direct use
of natural forces for obtaining a physical (i.e. empirically rather than
logically validatable) effect.  This distinction lies at the heart of the
current statute and pervades court decisions, law commentaries and
examination guidelines, including those of the EPO.
Greg hates this distinction and goes to great lengths to make it appear
unscientific, quoting Churtch, Turing, Postel and talking about cosmology
"in the light of co-design tools".  Yet the more he tries to blur it,
the sharper it gets.  At least it is sharper than the distinction between
murder and unintentional killing.  Maybe we should just, for the sake
of clarity, impose a death penalty on unintentional killing.

-phm





